N5475
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO 473 OF 2013

IAN AUGEREA,
REGISTRAR OF THE NATIONAL COURT
Plaintiff

V

AUGUSTINE KOROMA, JACK TONGIA, KUNDA KANA, MICHAEL TOMORANGAI, RUTAI TONGIA & STEVEN ANDANBO
Contemnors

Madang: Cannings J
2014: 2, 31 January

CONTEMPT – contempt committed outside courtroom, within precincts of court – threatening and inciting violence against parties and lawyers – punishment – six contemnors convicted of two offences each – sentencing principles for multiple offences – whether committal to prison or fine is appropriate.

Six persons were each convicted after trial of two counts of contempt of court by (1) threatening and inciting violence against and intimidating a party and others to court proceedings; and (2) disturbing the peace of the precincts of the National Court. This interfered directly with the due administration of justice. A hearing was held to determine punishments. The contemnors argued that payment of fines was more suitable or appropriate punishments. The plaintiff submitted that committal to prison for 6 to 12 months each was the appropriate punishment.
Held:

(1)	There being no maximum penalty for contempt of court, it is useful to set a notional maximum having regard to written laws providing for punishment for similar offences. An appropriate notional maximum is committal to prison for two years or a fine of K5,000.00 or both.

(2)	A useful starting point for punishment purposes is the middle of the range: committal to prison for 12 months or a fine of K2,500.00 or both. The court should then consider punishment imposed in equivalent cases and the mitigating and aggravating factors of the present case to assess the form and extent of the appropriate punishment for each offence.

(3)	As each contemnor had been convicted of two offences, normal criminal sentencing principles relating to whether the punishment should be served cumulatively or concurrently and the totality principle should be applied.

(4)	Mitigating factors are: the contemnors have co-operated with the Court; and they have no prior convictions and have expressed genuine remorse.

(5)	Aggravating factors are that the contemnors disobeyed an earlier order of the National Court; ignored the Court's warning; were involved in an armed and angry mob; incited physical violence, creating a situation which could easily have got out of hand and erupted into a riot; severely interrupted the peace, order and sanctity of the Court; showed gross disrespect and disregard of the Court, its authority and processes.

(6)	The seriousness of the matter warranted committal to custody for a period of 18 months on each count.

(7)	The offences were each part of the same incident, so the punishments should be served concurrently. No reduction under the totality principle was warranted. 

(8)	Suspension of the punishment was not appropriate as it would tend to lessen the seriousness of the contempt and neutralise the deterrent effect of the punishment. Accordingly each contemnor was committed to custody for a period of 18 months.

Cases cited

The following cases are cited in the judgment:

Andrew Kwimberi v The State (1998) SC545
Bishop Brothers v Ross Bishop (1989) N690
Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47
Elias Padura v Stephanie Valikvi (2012) N4894
Ian Augerea v David Tigavu (2010) N4188
Ian Augerea, Registrar of the National Court v Augustine Koroma & 12 Ors (2013) N5434
John Rumet Kaputin v The State [1979] PNGLR 559
Kalip Salo v Peter Gerari & Lawrence Polain (2005) N2923
Manu Kovi v The State (2005) SC789
Mase v The State [1991] PNGLR 88
Newsat Ltd v Telikom PNG Ltd (2008) N3673
Peter Luga v Richard Sikani (2002) N2285
Public Prosecutor v Kerua [1985] PNGLR 85
Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448
Re Valentine Kambori (No 3) (2003) N2490
Richard Sikani v The State and Peter Luga (2003) SC807
Ross Bishop v Bishop Brothers [1988-89] PNGLR 533
Sr Dianne Liriope v Dr Jethro Usurup (2009) N3931
Taiba Maima v Ben Hambakon Sma [1971-1972] PNGLR 49
The State v Dominic Kurai (2008) N3435
The State v James Yali (2005) N2989
The State v John Rumet Kaputin [1979] PNGLR 544
The State v Justin Ipa (2008) N3439
Yap v Tan [1987] PNGLR 227

PUNISHMENT

This is a decision on punishment for six individuals found guilty of contempt of court.

Counsel

A Kalandi, for the plaintiff
T Boboro, for the contemnors

31st January, 2014

1. CANNINGS J: The six contemnors were each convicted after trial of two counts of contempt of court and this is the court's decision on punishment. The offences were committed in the course of an incident in the precincts of the National Court at Yabob Road, Madang, on the morning of Tuesday 3 September 2013.

2. The Court was that day dealing with an election petition concerning the result of the 2012 election for the seat of Usino-Bundi Open. The petitioner, Peter Charles Yama, was challenging the election of Hon Anton Yagama MP. During the luncheon adjournment, as the petitioner Mr Yama and his lawyer and other associates were driving along Yabob Road in the direction of Modilon Road, they were confronted and threatened with physical violence by a group of Mr Yagama's supporters. That group of supporters shouted at and abused Mr Yama. They had black paint and mud on their faces and some of them were armed with weapons including bushknives, iron rods, stones and axes, which were brandished in a threatening manner, for example by being scraped along the road. Members of the Yagama group had stationed themselves outside the courthouse so that they would be able to intimidate Mr Yama and his lawyer and members of Mr Yama's group as they left the precincts of the Court.

3. It was a serious incident, involving threats of violence with weapons and a high level of intimidation, against a party to ongoing court proceedings, and his lawyer and other associates. The aggressors were members of a group of Mr Yagama's supporters. Mr Yama's supporters were stationed at the opposite end of Yabob Road. They did not offer any aggression and did not get involved in the violent incident. They kept the peace.

4. The aggressive conduct of Mr Yagama's supporters was likely to interfere in the due administration of justice as it had real potential to interrupt the orderly dispatch of the business of the National Court by hampering the ability of Mr Yama and his lawyer (who is an officer of the court) to freely put their case to the court without fear of intimidation or reprisal. Conduct of this nature is a sign of disrespect to the Court and is a threat to the authority of the Court. It is conduct that constitutes contempt of court.

5. Thirteen people were charged with contempt for their direct involvement in the incident. Six were found guilty (the six now before the Court to be punished). Six were found not guilty. One died and no verdict was entered against him.

6. The six who were found guilty were each convicted of:

(1)	threatening and inciting violence against and intimidating a party and others to court proceedings; and

(2)	disturbing the peace of the precincts of the National Court.

Further details are in the judgment on verdict, Ian Augerea, Registrar of the National Court v Augustine Koroma & 12 Ors (2013) N5434.

ANTECEDENTS

7. None of the contemnors has prior convictions.

ALLOCUTUS

8. The contemnors were given the opportunity to address the court on the question of punishment. They each said:

I now stand before this Honourable Court having being found guilty of contempt of court. The contempt charges arise from an incident that occurred outside the premises of the court house, here in Madang on 3 September 2013.

I wish to sincerely apologise to your Honour and to this Honourable Court and the staff of this Court for the particular incident that occurred on the 3 of September 2013.

I also wish to sincerely apologise to the petitioner, Mr Peter Yama, and his family and his supporters.

Furthermore I wish to sincerely apologise to Honourable Anton Yagama and all those persons who have been affected in one way or the other by the incident.

As I have now been found guilty of the contempt of court, I wish to humbly seek your Honour forgiveness and sympathy and to humbly as this Honourable Court to impose a non-custodial penalty or sentence against me.

I am truly sorry for the incident that occurred on the 3 of September 2013.

9. They emphasised that they were first-time offenders. They asked for the mercy of the Court and promised that they would not repeat what they did.

PERSONAL PARTICULARS

10. The following particulars were provided by counsel for the contemnors, Mr Boboro.

11. Augustine Koroma is aged 43. He is from Mendi 1 village, Bundi. He has been married for 18 years and has six children. Two of his children are in secondary school, two are in primary school, one is in kindergarten and the last-born is a toddler. He is an optical and audiometrist educator by profession. He was the Acting Director of CALLAN Services for Disabled Persons, PNG. Currently he is the Coordinator of National Training and Services Community Based Rehabilitation and Project Monitoring & Evaluation. He has been advocating and promoting services for persons with disabilities and the poor and marginalized in communities throughout PNG for over 20 years. He is a member of the Catholic Church.

12. Jack Tongia is aged 30. He is from Snowpas village, Bundi. He is married with two children, aged six and four. He is a subsistence farmer. He is a member of the Catholic Church.

13. Kunda Kana is aged 33. He is from Snowpas village, Bundi. He is single. He is a subsistence farmer. He is a member of the Catholic Church.

14. Michael Tomorangai is aged 26. He is from Snowpas village, Bundi. He is married with one child, aged three. He is a subsistence farmer. He is educated to grade 11. He is a member of the Catholic Church.

15. Rutai Tongia is aged 35. He is from Snowpas village, Bundi. He is married with six children, aged six and four. Two of his children are in primary school, one is in elementary school, one is a toddler and the last two are five-month-old twins. He is a subsistence farmer. He is a member of the Catholic Church.

16. Steven Andanbo is aged 39. He is from Snowpas village, Bundi. He is married with five children. The first four are in grades 6, 4, 2 and 1 respectively. The last-born is an infant. He is a teacher by profession and a keen NGO activist. He is a member of the Catholic Church.

SUBMISSIONS BY DEFENCE COUNSEL

17. Mr Boboro highlighted that all contemnors have no prior convictions. They have cooperated with the Court during the conduct of their case. They have apologised for the incident and expressed genuine remorse. Their case bears some similarity with that of Ian Augerea v David Tigavu (2010) N4188 in which the contemnor was found guilty of three counts of contempt of court for instigating an incident outside a courtroom, within the precincts of the National Court: (1) threatening and inciting violence against and between parties to ongoing court proceedings, (2) threatening and abusing lawyers involved in those court proceedings, (3) threatening and abusing persons who may be witnesses in those proceedings, and punished by 12 months committal to prison.

18. Mr Boboro submitted that the present case was less serious than Tigavu in that this was a less direct case of contempt and the incident happened a considerable distance from the courthouse, whereas in Tigavu the contemnor verbally abused and threatened a party and witness in the court case and lawyers just as they were leaving the courtroom. The present case does not warrant a custodial penalty. All contemnors should be fined, Mr Boboro submitted.

SUBMISSIONS BY PROSECUTING COUNSEL

19. Mr Kalandi stressed that this was a very serious case of contempt of court as the contemnors displayed serious disrespect and disregard of the National Court and its authority and also showed a lack of respect for the public. The Court had warned at a hearing in Waigani on 29 July 2013 that such conduct would not be tolerated. The contemnors displayed a very poor attitude. Their actions were premeditated.

20. This case involved elements of what is known as disobedience contempt, which usually attracts a prison term. The apologies made in their allocutus have been too late coming, and should not be taken into account in their favour. The punishment should be in the range of six to 12 months, none of which should be suspended.

DECISION MAKING PROCESS

21. As each contemnor has been convicted of two offences, normal sentencing principles relating to whether the punishment should be served cumulatively or concurrently and the totality principle will be applied:

•	step 1: what is the maximum punishment?
•	step 2: what is a proper starting point?
•	step 3: what punishment has been imposed in equivalent cases?
•	step 4: what are the mitigating and aggravating factors?
•	step 5: what is the appropriate form of punishment?
•	step 6: what should the extent of the punishment be for each count?
•	step 7: should it be served concurrently or cumulatively?
•	step 8: what is the effect of the totality principle?
•	step 9: should all or part of the punishment be suspended?

22. The contemnors will be each given the same punishment. There is insufficient evidence to conclude that they had different degrees of involvement in what happened. Their personal circumstances are similar. No special factors such as poor health, which might warrant different punishments being imposed, have been brought to the Court's attention.

STEP 1: WHAT IS THE MAXIMUM PUNISHMENT?

23. The law under which this matter has been prosecuted – the National Court Rules – does not fix a maximum punishment for contempt. Order 14, Rule 49(1) (punishment) simply states:

Where the contemnor is not a corporation the Court may punish contempt by committal to prison or fine or both.

24. The court therefore has a very wide discretion as to punishment. In deciding how it should be exercised it is useful as I suggested in Newsat Ltd v Telikom PNG Ltd (2008) N3673 to set a notional maximum. Courts, generally, look first at the maximum penalty when deciding on a sentence for a criminal offence, then say that the maximum should be reserved for the worst category of cases and then assess how the case of the offender being sentenced compares with the worst case category (Taiba Maima v Ben Hambakon Sma [1971-1972] PNGLR 49). I have in two cases examined a number of laws that provide for punishment for contempt of court or contempt of other constitutional institutions or governmental bodies and concluded that a notional maximum should be regarded as two years imprisonment or a fine of K5,000.00 or both (Sr Dianne Liriope v Dr Jethro Usurup (2009) N3931; Ian Augerea v David Tigavu (2010) N4188). I follow that approach here.

25. I stress that this is a notional maximum. There might be a case in which the nature and extent of the contempt warrant sterner punishment. However, the present case is not such a case, so it remains useful to bear in mind a notional maximum when determining the appropriate penalty.

STEP 2: WHAT IS A PROPER STARTING POINT?

26. Judges often refer to a starting point when they are determining a sentence, ie a reference point against which the case before them can be assessed. The judge assesses whether the case is more, or less, serious than the starting point. If it is, to what extent is it more serious or less serious? The Supreme Court often sets starting points when giving sentencing guidelines in the course of deciding criminal appeals. For example, the Court gave detailed guidelines for the homicide offences of manslaughter, murder and wilful murder in Manu Kovi v The State (2005) SC789. Sentencing starting points have not been provided for in all criminal offences, however, and in such cases, the National Court is inclined to set its own (The State v James Yali (2005) N2989).

27. In the case of contempt of court no punishment guidelines have been given by the Supreme Court and no starting points have been set by the National Court. I propose to do what I have done when faced with a similar scenario when sentencing for other offences: set a starting point in the middle of the available range (The State v Justin Ipa (2008) N3439, The State v Dominic Kurai (2008) N3435). The starting point I use is one year imprisonment or a fine of K2,500.00 or both.

STEP 3: WHAT PUNISHMENT HAS BEEN IMPOSED IN EQUIVALENT CASES?

28. In selecting equivalent cases it is useful to consider the nature of the contempt committed by the contemnor. Sakora J explained in Peter Luga v Richard Sikani (2002) N2285 that contempt of court is an offence that is constituted not only by disobedience of a court order but any act or omission committed in the face of the court or outside court which is intended to or calculated to or likely to interfere or obstruct the fair or due administration of justice (Andrew Kwimberi v The State (1998) SC545). His Honour identified five main categories of contempt:

1	improper behaviour in a court room during a hearing; the "contempt in the face of the court" situation;

2	endeavouring improperly to influence participants in proceedings;

3	contempt by publication, notably publishing allegations that tend to undermine public confidence in the administration of justice; and publishing material which tend to prejudice the fair trial of a case;

4	failure to comply with an order of the court or undertaking given to a court – the "disobedience contempt"; and

5	other forms of interference with the administration of justice, including failing to carry out one's duties as a court officer and taking reprisals on witnesses and court officials on account of what they have said or done in court.

29. The present case falls largely within category 5: other forms of interference with the administration of justice, as it involved threats and intimidation to parties and lawyers involved in ongoing court proceedings. However, it also involves elements of category 4 as the conduct of the contemnors meant that they were disobeying the order of the National Court made at Waigani on 29 July 2013, which was:

(1)	the first respondent and the petitioner and their supporters, agents or servants are restrained from causing or inciting any form of disturbance to any of the parties involved, their family members or their properties including scrutineers involved in the recount;

(2)	the first respondent and the petitioner and their supporters are restrained from inciting or causing any disturbances, threats, intimidation, violence, assault, any destruction or damage to any person or any properties involved in the recount.

30. As I pointed out in Elias Padura v Stephanie Valikvi (2012) N4894 it has been customary to punish the disobedience form of contempt with a term of imprisonment. Short, sharp sentences in the range of 10 weeks to 18 months imprisonment have been the norm, as shown by the selection of cases in the following table.

PUNISHMENT FOR DISOBEDIENCE CONTEMPT BY INDIVIDUALS

No	Case	Details	Punishment	
1	The State v John Rumet Kaputin [1979] PNGLR 544,
Greville-Smith J	Contemnor, a Member of Parliament, disobeyed National Court order directing him as company secretary to lodge annual return within 3 months, by failing to lodge return. (Appeal against conviction and punishment dismissed: John Rumet Kaputin v The State [1979] PNGLR 559.)	10 weeks imprisonment
	
2	Yap v Tan [1987] PNGLR 227, 
Hinchliffe J	Contemnor, a businessman, disobeyed orders of the Supreme Court requiring him to cooperate with the receiver of a company, by not cooperating – convicted on three counts.	K5,000.00 x 3 = K15,000.00, in default 12 months imprisonment	
3	Bishop Brothers v Ross Bishop (1989) N690, Bredmeyer J	Contemnor, a businessman, disobeyed a National Court order requiring him to allow other persons on to business premises, by refusing access – convicted on two counts. (Appeal against conviction upheld: Ross Bishop v Bishop Brothers [1988-89] PNGLR 533.)	K500.00, in default 3 months imprisonment;
6 months imprisonment, suspended	
4	Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47,
Sheehan J	Contemnor, Managing Director of the Forestry Authority, disobeyed an interim National Court order that restrained him from closing the plaintiff's logging operations, by giving notice to the plaintiff to stop its operations.	Order for costs against contemnor	
5	Peter Luga v Richard Sikani 
(2002) N2286, Sakora J	Contemnor, Commissioner of the Correctional Service, disobeyed a National Court order to reinstate a dismissed officer, by failing to reinstate him. (Appeal against conviction upheld: Richard Sikani v The State (2003) SC807.)	6 months imprisonment
	
6	Re Valentine Kambori (No 3) (2003) N2490,
Sevua J	Contemnor, a Departmental Head and Chairman of the National Forest Board, convicted on two counts: (1) breaching bail condition by travelling overseas without the leave of Court and (2) failing to comply with undertaking to Court that he would arrange payment of a judgment debt.	6 months imprisonment, suspended; K2,500.00 fine
	
7	Kalip Salo v Peter Gerari & Lawrence Polain (2005) N2923, Sevua J	Two contemnors, purporting to be landowner representatives, fraudulently obtained a cheque for K500,000.00, being timber royalties, and disobeyed a National Court order requiring them to produce to the Court within 14 days all documents relating to the payment – they pleaded guilty to contempt.	18 months imprisonment x 2	
8	Sr Dianne Liriope v Dr Jethro Usurup (2009) N3931, Cannings J	Contemnor disobeyed an order of the National Court not to take disciplinary action without the leave of the Court against nurses who had been involved in strike action, by charging and then dismissing a nurse, without seeking the Court's leave, over a disciplinary matter.	6 months imprisonment	

31. Two other cases are worthy of mention. First the decision of the Supreme Court in Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448. Although it was not a disobedience contempt – the contemnor, the Minister for Justice, was convicted of publication of a document that scandalised the Supreme Court, so it was a category 3 case – it is significant that the contemnor was sentenced to eight months imprisonment.

32. The recent Madang case of Ian Augerea v David Tigavu (2010) N4188 was dealt with as a category 5 case: taking reprisals on parties and witnesses. The contemnor was punished by committal to custody for a period of 12 months, none of which was suspended.

33. It is clear that imposing a term of imprisonment as punishment (either as a primary or default penalty) would be consistent with the approach that has been taken by the National Court and the Supreme Court over the last 30 years.

STEP 4: WHAT ARE THE MITIGATING AND AGGRAVATING FACTORS?

34. I now highlight the mitigating and aggravating factors, as they will ultimately govern the appropriate form and extent of the punishment.

Mitigating factors

35. I accept the main mitigating factors suggested by Mr Boboro. The contemnors have co-operated with the Court since the beginning of the contempt case. They appeared in Court when they were initially summoned. They have attended Court whenever required to do so. They have complied with their bail conditions. They each have no prior convictions. They have each expressed genuine remorse. I reject Mr Kalandi's submission that their apologies should be regarded as worthless.

Aggravating factors

36. The aggravating factors are particularly weighty. This was an extremely serious incident. The contemnors incited physical violence, creating a situation which could easily have got out of hand and erupted into a riot. Weapons were involved. They severely interrupted the peace, order and sanctity of the Court. They showed gross disrespect and disregard of the Court, its authority and processes. They disobeyed the order of the Court made at Waigani on 29 July 2013. And they failed to heed the warning of the Court given that day. This is what the transcript reveals that I said, as the presiding Judge:

I must say I am very disappointed to hear about what has happened in the last day or so in Madang. I think it is shameful for everyone involved in this case. It is embarrassing for me as a resident judge for Madang to see this sort of thing happen in the town that I am responsible for and I implore the leaders Mr Yama and Mr Yagama to take control.

I endorse what I saw, it is a quote from the provincial police commander in one of the newspapers today in which he called upon the leaders to lead and take control and not retaliate, not take the law into their own hands. And I trust that Mr Yagama and Mr Yama, Mr Kuli and the other leaders involved in this case will do exactly that.

The damage that has been done to property, the injuries that have been caused to people, these are all police matters and the law will take its course. And I would also like to emphasise that these are court matters and I do not want to see or hear of any disturbances of this nature happening again, particularly in the precincts of the court because if any of this happens in the precincts of any court in which I am presiding, I will not hesitate to charge everyone suspected on reasonable grounds of involvement with contempt of court.

I will not wait for the police to take the initiative; I will take the initiative. I will have people arrested and rounded up and imprisoned, put in remand awaiting their opportunity to be dealt with for contempt of court. I will not tolerate this sort of behaviour. It is very disappointing.

Mr Interpreter, I believe we have got supporters from both sides here. I will just repeat that. I want everybody who is involved in supporting Mr Yagama and Mr Yama in this case to understand that the court expects everybody to behave themselves in the precincts of the court. If I hear any disturbance taking place inside or outside of this court room, for example this afternoon, I will not hesitate to get people arrested and charged with contempt of court. That applies to Waigani and also applies particularly in Madang. Thank you.

37. It is undisputed that the contemnors knew about the Court hearing in Waigani and the order that was made and the warning that was given by the Court.

38. Mr Boboro tried valiantly in his submission to downplay the gravity of this incident by arguing that it was not as serious as Tigavu. I disagree. Here the contemnors were members of an angry mob. It was not one man getting angry with a bigger group. And this was a mob that was armed with weapons, which they were displaying in a threatening manner. In Tigavu, the contemnor had no weapons at his disposal. It is true the incident in the present case happened 50 metres down the road, not right outside the courtroom as in Tigavu. But that is a minor distinguishing fact. It was an incident that happened in the precincts of the Court, a space in which every member of the public, particularly those who are supporting one side or another in a court case, and especially parties and lawyers, must have freedom to come and go without fear of threats, reprisals and intimidation.

39. There is another aspect of this case – another aggravating factor – that was not present in Tigavu. The contemnors' actions were premeditated. In Tigavu the contemnor was angry and frustrated and acted on the spur of the moment. Here the contemnors came to the courthouse looking for trouble. They had painted their faces and they were armed, as if they were going to fight. They were ready to intimidate and threaten the petitioner and his lawyer and associates when they left the courthouse. They had a plan and they put it into action.

STEP 5: WHAT IS THE APPROPRIATE FORM OF PUNISHMENT?

40. Should the Court commit the contemnors to prison? Or impose a fine? Or impose both forms of punishment? In Luga v Sikani Sakora J focussed on the seriousness, nature and extent of the contemnor's contempt and reached the considered view that committal to custody was a far more appropriate punishment than a fine. Though an appeal against conviction was upheld the Supreme Court said nothing on the appropriateness of the form or extent of the punishment (Richard Sikani v The State and Peter Luga (2003) SC807). I regard the considerations spelt out by Sakora J as highly persuasive and good law.

41. As I said in Liriope and Tigavu, prison terms for contempt of court provide a more effective deterrent than a fine. It is a better way of signalling the community's condemnation of the contemnor's conduct than a fine. It underlines the seriousness of the matter if a contemnor is required to spend time in prison. It reinforces the absolute duty of everyone to respect the Court, not to take the law into their own hands, comply with court orders and maintain the Rule of Law.

42. There is always a chance that a fine will be paid by someone other than the offender; and if that happens many people will feel that the offender has not really been punished at all – his crime is paid for by someone else. Imposing a fine would not, I consider, make the contemnor personally responsible for what he did. He must bear personal responsibility for what he did and he must be punished in a way that makes him personally responsible and is seen by the community to be fair and appropriate. These are the sorts of considerations that led Greville-Smith J in the National Court in Kaputin's case to say:

I have considered … imposing a fine in this case, but have come to the conclusion that a fine, even a very substantial one, would not sufficiently reflect the seriousness of this matter, the gravamen of which is disobedience for a long period of an order of this Court. The impact of a fine is often too indeterminate and too diffuse. Often the money is supplied by others, at least in the short term, and is not repaid for a long time, if ever, or creditors or dependants or kinsmen of the accused suffer by its payment.

43. Mr Boboro urged the Court to have regard to the welfare of the contemnors' children. It will inevitably cause hardship and distress to their families and may impair their children's education if they are sent to prison. These unfortunately are the by-products of any breadwinner being imprisoned. Many more people than just the offender suffer. The contemnors should have considered the effect of a possible prison sentence before taking part in this incident.

44. Committal to custody should not be regarded as a drastic form of punishment or something reserved for the worst cases of contempt or cases in which the contemnor has no children to care for. Children inevitably suffer when a parent is sent to prison. For this type of contempt, the previous cases show that a prison term is the most appropriate form of punishment: the natural and ordinary consequence of being found guilty of this type of offences. I have decided that the most appropriate form of punishment in this case is committal to custody.

STEP 6: WHAT SHOULD THE EXTENT OF THE PUNISHMENT BE FOR EACH COUNT?

45. The question here is: what should the term of imprisonment be? I have identified more aggravating than mitigating factors. Punishment above the starting point of 12 months imprisonment is called for. This was an extremely serious case. It could easily have escalated out of control. It was an affront to the court and to the system of justice. Intimidation of parties, lawyers and opposing supporters' witnesses must be condemned as intolerable. If this sort of conduct is allowed to become the norm, respect for the authority and independence of the courts will be undermined. A deterrent punishment is called for. This case is significantly more serious than Tigavu.

46. The appropriate punishment for each offence is 18 months imprisonment. The total potential punishment is thus three years imprisonment. It is not necessary for a fine to be imposed in addition to a term of imprisonment.

STEP 7: SHOULD THE PUNISHMENT BE SERVED CONCURRENTLY OR CUMULATIVELY?

47. The general rule is that if two or more offences are committed in the course of a single incident all sentences in respect of the offences should be concurrent unless there are different victims (Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88). Here there was one incident involving the same victims. Therefore the punishment of 18 months for each offence should be served concurrently. The total potential punishment is therefore reduced to 18 months imprisonment.

STEP 8: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

48. I now look at the total punishment that each contemnor is potentially facing to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing crushing sentences, those that are over the top or manifestly excessive. I do not think 18 months is excessive or inappropriate. It could even be considered lenient. The total punishment will be 18 months imprisonment.

STEP 9: SHOULD ALL OR PART OF THE PUNISHMENT BE SUSPENDED?

49. Suspending all or part of the prison term is an option under Order 14, Rule 49(3) of the National Court Rules, which states:

The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment where the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.

50. In some cases (eg Yap v Tan and Bishop Bros) prison terms for contempt have been suspended on condition that the contemnor do certain things. However, in this case suspending the punishment would tend to lessen the seriousness of the contempt and neutralise the deterrent effect of the punishment.

51. The message needs to be driven home that threatening and intimidating people outside a courthouse because of their involvement in a court case is an extremely serious matter. It will not be tolerated. Parties, lawyers and witnesses must be permitted to perform their duties and exercise their legal rights in a peaceful and orderly environment, free of threats, intimidation, harassment and reprisals. Authority and respect for the courts must be maintained. These messages are best conveyed by requiring the contemnors to spend their time in custody. None of the punishment will be suspended.

ORDER

(1)	The contemnors, Augustine Koroma, Jack Tongia, Kunda Kana, Michael Tomorangai, Rutai Tongia and Steven Andanbo, having been convicted of contempt of court, are each punished as follows:

Form of punishment imposed	18 months committal to prison	
Pre-punishment period in custody	Nil	
Resultant length of punishment to be served	18 months committal to prison	
Amount of punishment suspended	Nil	
Time to be served in custody	18 months	
Place of custody	Beon Correctional Institution	

(2)	The parties will bear their own costs.

(3)	Bail money of K300.00 shall be refunded to each contemnor forthwith.

Ruling accordingly.
______________________________________________
Registrar, National Court: Lawyer for the Plaintiff
Kuman Lawyers: Lawyers for the Contemnors